Almond v. Unified Sch. Dist. # 501

Citation749 F.Supp.2d 1196
Decision Date28 October 2010
Docket NumberCase No. 07–4064–JAR.
PartiesDwight L. ALMOND, III and Kevin C. Weems, Plaintiffs,v.UNIFIED SCHOOL DISTRICT # 501, Defendant.
CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas

OPINION TEXT STARTS HERE

Pantaleon Florez, Jr., Topeka, KS, pro se.Cynthia J. Sheppeard, Patricia E. Riley, Weathers, Riley & Sheppeard, LLP, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

Plaintiffs Dwight L. Almond, III, and Kevin C. Weems filed this action against their employer, the Unified School District # 501 (USD), alleging violations of the Age Discrimination in Employment Act (ADEA),1 and the Kansas Act Against Discrimination (“KAAD”).2 In the Pretrial Order, plaintiffs alleged they were subjected to a wage cut because of their age, in violation of the ADEA.3 On defendant's motion, the Court dismissed the case in its entirety. This case is now before the Court on remand from the Tenth Circuit, for reconsideration of this Court's prior judgment in light of an intervening change of law.

I. Procedural History

In 2008, defendant filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction or Alternatively for Summary Judgment (Doc. 44), arguing that both plaintiffs failed to exhaust their administrative remedies, failed to do so within the statute of limitations, and failed to show a prima facie case of age discrimination or a genuine issue of material fact that defendant's reasons for the employment action were pretextual. On December 1, 2008, the Court granted defendant's motion to dismiss for lack of subject matter jurisdiction. 4 The Court found that Weems failed to exhaust his administrative remedies because he failed to include any allegations regarding the pay-setting event—the RIF—or the subsequent wage reduction in his Kansas Human Rights Commission complaint. Additionally, the Court found that both Weems and Almond failed to exhaust their administrative remedies within the requisite time period. Because the Court dismissed all claims on exhaustion grounds, it did not proceed to consider the merits of plaintiffs' discrimination claims.

After the case was dismissed, but while it was pending on appeal before the Tenth Circuit, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, legislatively overruling the United States Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co.,5 which this Court cited in dismissing the original action. In light of the intervening change of law, the Tenth Circuit entered an order granting the parties' motion to voluntarily dismiss the appeal upon the condition that this Court vacate and reconsider its judgment.6

After a status conference with the parties, the Court vacated its judgment 7 and directed the parties to brief the issue of the effect of the Lilly Ledbetter Fair Pay Act on the statute of limitations in this case. The parties agreed that they would rely on the same factual record unless plaintiffs could show a compelling reason to supplement the factual record, and the Court would consider the parties' arguments on the statute of limitations before proceeding to defendant's alternative arguments for summary judgment, as presented in the original summary judgment briefs.

This matter is before the Court on the parties' supplemental briefs addressing the motion to dismiss (Docs. 66, 69, 70) and defendant's Motion for Summary Judgment or to Dismiss (Doc. 44).

II. Lilly Ledbetter Fair Pay Act of 2009

The Court's original Memorandum and Order cited to the Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co.,8 in which the Court concluded that an employer's decision with respect to setting pay is a discrete act of discrimination and the relevant period of limitations begins to run when the act first occurs.9 Lilly Ledbetter received poor performance evaluations from several supervisors because of her sex, and as a result of these evaluations, her pay was not increased as much as if she had been evaluated fairly.10 Toward the end of her employment, she was paid significantly less than her male colleagues.11 Her Title VII claim was based on discriminatory pay checks calculated on the basis of discriminatory evaluations.12 However, the Supreme Court held that, because the evaluations occurred outside of the charging period, and the paychecks were merely the “effect” of that discrimination, her claims were time barred because she did not file an administrative charge within 180 days of when the discriminatory pay decisions were made and communicated to her. 13

The Ledbetter decision prompted a Congressional response; and the Supreme Court's decision was superceded by the enactment of the Lilly Ledbetter Fair Pay Act of 2009 (“FPA”). The FPA amended 42 U.S.C. § 629(d) of the ADEA by adding the following subparagraph, defining when an unlawful practice “with respect to discrimination in compensation” “occurs” for purposes of triggering the administrative filing period:

(3) For purposes of this section, an unlawful practice occurs, with respect to discrimination in compensation in violation of this chapter, when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.14

Congress's purpose in adding this language to the ADEA, and similar language to Title VII, the Americans with Disabilities Act, and the Rehabilitation Act, was to reverse the Supreme Court's Ledbetter decision which, in Congress's view, unduly restricted the time period in which victims of wage discrimination could seek relief:

(1) The Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 [127 S.Ct. 2162, 167 L.Ed.2d 982] (2007), significantly impairs statutory protections against discrimination in compensation that Congress established and that have been bedrock principles of American law for decades. The Ledbetter decision undermines those statutory protections by unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.

(2) The limitation imposed by the Court on the filing of discriminatory compensation claims ignores the reality of wage discrimination and is at odds with the robust application of the civil rights laws that Congress intended. 15

Furthermore, Congress made the effective date of the FPA May 28, 2007, the day before Ledbetter was decided, making it clear that the statute was intended to overrule Ledbetter and not other precedents. In making it retroactive, Congress clarified that the statute applies to “all claims of discrimination in compensation” rather than to all claims of discrimination generally:

This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007, and apply to all claims of discrimination in compensation under ... the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.), ... that are pending on or after that date.16

As a result of the FPA, “each paycheck that stems from a discriminatory compensation decision or pay structure is a tainted, independent employment-action that commences the administrative statute of limitations.” 17

On remand from the Tenth Circuit, this Court must determine whether this legislative change affects the accrual date of plaintiffs' claims in this case.

III. Factual Background

USD 501 has a board policy authorizing it to assign and transfer classified employees within the district to meet educational potential and operational needs, as well as a policy outlining the process and procedure when USD determines it necessary to declare a reduction in force (“RIF”). These policies are included in USD's policy handbook, which it provides to all employees, including plaintiffs Almond and Weems.

Almond

In 2003, USD decided it was necessary to reduce its budget by five percent. Under the direction of USD's budget director, the manager of USD's classified employees recommended, and USD approved, the elimination of: a flooring position; a ceiling repair position; a custodial position; an open mower position; and the sole cement work position at the USD Service Center, which was Almond's position. Almond was 46 years old at the time, was classified as a Maintenance IV laborer, and was the sole USD employee performing cement work at the USD Service Center.

On June 10, 2003, USD notified Almond that: (1) his position was being eliminated effective July 1, 2003; (2) USD was offering him a Custodian III position as Head Building Operator; (3) this Custodian III position was a lower salary grade than the Maintenance IV position; (4) nonetheless, if Almond accepted the Custodian III position, he would continue to be paid at the higher Maintenance IV salary rate for two years, after which his salary would be reduced to the Custodian III salary rate; and (5) during the two year saved pay grade period, Almond would not receive any annual salary increases. Almond accepted USD's offer.

As of July 1, 2003, Almond was paid $17.15 per hour as a Maintenance IV classification; the Custodian III position salary rate was $12.47 per hour. Almond thus continued to be paid $17.15 per hour for two years. In September 2005 his salary was reduced to $13.97 per hour, the current rate for Custodian III employees with Almond's seniority.

Almond filed his complaint with the Kansas Human Rights Commission (“KHRC”) on April 13, 2006, alleging that he was forty-eight years old and that: on July 1, 2005, USD denied him a wage increase; on September 12, 2005, his wage was decreased; and on February 28, 2006, he was subject to a written reprimand. USD received the charge on April 13, 2006,...

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